Simcorp Developments and Constructions Pty Ltd v Gold Coast Titans Property Pty Ltd - [2010] QSC 162

SUPREME COURT OF QUEENSLAND

CITATION:

Simcorp Developments and Constructions P/L v Gold Coast Titans Property P/L; Gold Coast Titans Property P/L v Simcorp Developments and Constructions P/L [2010] QSC 162

PARTIES:

SIMCORP DEVELOPMENTS & CONSTRUCTIONS PTY LTD
ACN 096 658 776
(applicant)
v
GOLD COAST TITANS (PROPERTY) PTY LTD ATF GOLD COAST NRL PROPERTY TRUST
ABN 51 826 843 853
(respondent)

GOLD COAST TITANS (PROPERTY) PTY LTD ATF GOLD COAST NRL PROPERTY TRUST
ABN 51 826 843 853
(applicant)
v
SIMCORP DEVELOPMENTS & CONSTRUCTIONS PTY LTD
ACN 096 658 776
(respondent)

FILE NO/S:

SC No 1163 of 2010
SC No 2807 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application – Leave to Discontinue
Application – Injunction and Declaration

DELIVERED ON:

18 May 2010

DELIVERED AT:

Brisbane

HEARING DATE:

23 March 2010

JUDGE:

Douglas J

ORDER:

In SC No 1163 of 2010:

1.   Pursuant to r 304(2) of the Uniform Civil Procedure Rules 1999, that the applicant be granted leave to discontinue.

2.   That the applicant pay the respondent’s costs of and incidental to the proceedings including the respondent’s costs of and incidental to the application for discontinuance to be assessed on the indemnity basis.

3.   Stay further proceedings in this court by the applicant in respect of the contract between it and the respondent dated 26 June 2009 until payment of those costs.

In SC No 2807 of 2010:

1.   It is declared that the document titled ‘Payment Claim – 13’ dated 9 March 2010 produced by the respondent and delivered to the applicant on 10 March 2010 is not a valid payment claim pursuant to the provisions of the Building and Construction Industry Payments Act 2004.

2.   The respondent be restrained from relying on the document titled ‘Payment Claim – 13’ dated 9 March 2010 produced by the respondent and delivered to the applicant on 10 March 2010 to support an adjudication application under s 21 of the Building and Construction Industry Payments Act 2004 or for any other purpose as a payment claim pursuant to the Building and Construction Industry Payments Act 2004 including the enforcement of the adjudication decision delivered 17 May 2010.

3.   Order that the respondent pay the applicant’s costs of and incidental to the application on the standard basis.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – STAYING PROCEEDINGS – where the applicant, Simcorp Developments Pty Ltd, commenced proceedings in relation to payment claims made pursuant to the Building and Construction Industry Payments Act 2004 – where the applicant, Simcorp Developments Pty Ltd, seeks leave to discontinue those proceedings in favour of a new claim - whether appropriate to stay further proceedings until costs are paid – whether costs should be paid on the indemnity basis

CONTRACT – BUILDING, ENGINEERING AND RELATED CONTRACT – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – where the applicant, Simcorp Developments Pty Ltd, served a payment claim pursuant to the Building and Construction Industry Payments Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] QSC 162
Decision Date: 18 May 2010

CaseChat Overview and Summary

In the case of Simcorp Developments and Constructions Pty Ltd v Gold Coast Titans Property Pty Ltd, the applicant, Simcorp Developments and Constructions Pty Ltd, commenced proceedings against the respondent, Gold Coast Titans Property Pty Ltd, regarding payment claims made under the Building and Construction Industry Payments Act 2004. The applicant sought leave to discontinue the proceedings in favour of a new claim and also to stay further proceedings until the costs were paid. The legal issues before the court included whether it was appropriate to grant leave to discontinue the proceedings, whether the costs should be paid on the indemnity basis, and whether the payment claim served by the respondent was valid under the Act.

The court held that the applicant was entitled to leave to discontinue the proceedings and that the costs should be paid on the indemnity basis. The court found that the payment claim served by the respondent was not valid as it included amounts covered by previous claims and was served on an incorrect date. The court also restrained the respondent from relying on the invalid payment claim for any purpose under the Act, including the enforcement of an adjudication decision. The court ordered the respondent to pay the applicant's costs of the application on the standard basis.

The court granted the applicant leave to discontinue the proceedings and ordered that the applicant pay the respondent’s costs of and incidental to the proceedings, including the costs of and incidental to the application for discontinuance, on the indemnity basis. The court also stayed further proceedings in this court by the applicant in respect of the contract between the parties until payment of those costs. Additionally, the court declared that the document titled ‘Payment Claim – 13’ dated 9 March 2010 produced by the respondent and delivered to the applicant on 10 March 2010 was not a valid payment claim pursuant to the provisions of the Building and Construction Industry Payments Act 2004. The court restrained the respondent from relying on the document to support an adjudication application or for any other purpose as a payment claim under the Act.

Orders

Orders of the court

In SC No 1163 of 2010:

1. Pursuant to r 304(2) of the Uniform Civil Procedure Rules 1999, that the applicant be granted leave to discontinue.

2. That the applicant pay the respondent’s costs of and incidental to the proceedings including the respondent’s costs of and incidental to the application for discontinuance to be assessed on the indemnity basis.

3. Stay further proceedings in this court by the applicant in respect of the contract between it and the respondent dated 26 June 2009 until payment of those costs.

In SC No 2807 of 2010:

1. It is declared that the document titled ‘Payment Claim – 13’ dated 9 March 2010 produced by the respondent and delivered to the applicant on 10 March 2010 is not a valid payment claim pursuant to the provisions of the Building and Construction Industry Payments Act 2004.

2. The respondent be restrained from relying on the document titled ‘Payment Claim – 13’ dated 9 March 2010 produced by the respondent and delivered to the applicant on 10 March 2010 to support an adjudication application under s 21 of the Building and Construction Industry Payments Act 2004 or for any other purpose as a payment claim pursuant to the Building and Construction Industry Payments Act 2004 including the enforcement of the adjudication decision delivered 17 May 2010.

3. Order that the respondent pay the applicant’s costs of and incidental to the application on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Simcorp Developments and Constructions P/L v Gold Coast Titans Property P/L; Gold Coast Titans Property P/L v Simcorp Developments and Constructions P/L [2010] QSC 162
PARTIES:	SIMCORP DEVELOPMENTS & CONSTRUCTIONS PTY LTD ACN 096 658 776 (applicant) v GOLD COAST TITANS (PROPERTY) PTY LTD ATF GOLD COAST NRL PROPERTY TRUST ABN 51 826 843 853 (respondent)
GOLD COAST TITANS (PROPERTY) PTY LTD ATF GOLD COAST NRL PROPERTY TRUST ABN 51 826 843 853 (applicant) v SIMCORP DEVELOPMENTS & CONSTRUCTIONS PTY LTD ACN 096 658 776 (respondent)
FILE NO/S:	SC No 1163 of 2010 SC No 2807 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application – Leave to Discontinue Application – Injunction and Declaration
DELIVERED ON:	18 May 2010
DELIVERED AT:	Brisbane
HEARING DATE:	23 March 2010
JUDGE:	Douglas J
ORDER:	In SC No 1163 of 2010: 1. *Pursuant to r 304(2) of the Uniform Civil Procedure Rules* 1999, that the applicant be granted leave to discontinue. 2. That the applicant pay the respondent’s costs of and incidental to the proceedings including the respondent’s costs of and incidental to the application for discontinuance to be assessed on the indemnity basis. 3. Stay further proceedings in this court by the applicant in respect of the contract between it and the respondent dated 26 June 2009 until payment of those costs. In SC No 2807 of 2010:** 1. It is declared that the document titled ‘Payment Claim – 13’ dated 9 March 2010 produced by the respondent and delivered to the applicant on 10 March 2010 is not a valid payment claim pursuant to the provisions of the Building and Construction Industry Payments Act 2004. 2. The respondent be restrained from relying on the document titled ‘Payment Claim – 13’ dated 9 March 2010 produced by the respondent and delivered to the applicant on 10 March 2010 to support an adjudication application under s 21 of the Building and Construction Industry Payments Act 2004 or for any other purpose as a payment claim pursuant to the Building and Construction Industry Payments Act 2004 including the enforcement of the adjudication decision delivered 17 May 2010. 3. Order that the respondent pay the applicant’s costs of and incidental to the application on the standard basis.
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – STAYING PROCEEDINGS – where the applicant, Simcorp Developments Pty Ltd, commenced proceedings in relation to payment claims made pursuant to the Building and Construction Industry Payments Act 2004 – where the applicant, Simcorp Developments Pty Ltd, seeks leave to discontinue those proceedings in favour of a new claim - whether appropriate to stay further proceedings until costs are paid – whether costs should be paid on the indemnity basis CONTRACT – BUILDING, ENGINEERING AND RELATED CONTRACT – REMUNERATION – STATUTORY REGULATION OF ENTITLEMENT TO AND RECOVERY OF PROGRESS PAYMENTS – where the applicant, Simcorp Developments Pty Ltd, served a payment claim pursuant to the Building and Construction Industry Payments Act